Washington and Lee Law Review
Volume 39 | Issue 1
Article 6
1-1-1982
Employment Discrimination And The Visually
Impaired
David A. Yuckman
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David A. Yuckman, Employment Discrimination And The Visually Impaired, 39 Wash. & Lee L. Rev. 69
(1982), http://scholarlycommons.law.wlu.edu/wlulr/vol39/iss1/6
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EMPLOYMENT DISCRIMINATION AND THE
VISUALLY IMPAIRED
DAViD A. YUCKMAN*.
The Civil Rights movement of the 1960's taught American society
that it was wrong to discriminate against people in education or employment because of a factor over which they have no control. In the employment area, racial, religious, and ethnic minorities fought effecitvely to
gain the opportunity to compete for better jobs. Women, a numerical majority of the population, also fought against discrimination in the
workplace, as have older workers. Nonetheless, a number of other
minorities have been fighting against discrimination with less success.
They are the visually impaired, the developmentally disabled, the hearing impaired, the people confined to wheelchairs, and all other individuals who are considered handicapped.
This article will focus on a particular class of the handicapped, the
visually impaired.1 For the purpose of this article, the class will be defined
broadly: from the totally blind to those whose visual impairments are
slight, but who have been or could be the victims of employment discrimination because of these impairments. The visually impaired are not
a class apart from other-handicapped people. To a great extdnt, their experience parallels that of other handicapped classes. The general ineffectiveness of federal remedies and the reliance on state law to eliminate
discrimination affects all handicapped people. Analysis of the federal and
state law, however, will center on the visually impaired and their efforts
to gain access to employment.
This article contains three parts. The first deals with federal law as
it affects the visually impaired, and the handicapped in general, including an examination of the status of the visually impaired under
federal case law. The second part focuses on state law as a means for the
visually impaired to gain access to jobs. The third part examines the
issues of special concern to petitioners with physical handicaps: the
* Member, New Jersey and New York Bars. J.D. 1981, Rutgers; M. Phil. 1976, Columbia; M.S. 1971, B.S. 1970, M.I.T. The author wishes to thank Prof. Alfred W. Blumrosen for
his advice throughout the preparation of this article and Prof. Annamay T. Sheppard for
providing the original inspiration for the undertaking of this project.
A number of commentators have explored the education and underemployment problems of the deaf and the physically disabled. See, e.g., Large, Special Problems of the Deaf
Under the Education for All Handicapped Children Act of 1975, 58 WASH. U. L.Q. 213
(1980); Comment, Abroad in the Land- Legal Strategies to Effectuate the Rights of the
Physically Disabled,61 GEo. L.J. 1501 (1973); Note, The ForgottenMinority: The Physically Disabled and Improving Their PhysicalEnvironment, 48 CHi.-KENT L. REv. 215 (1971);
Stahler, Underemployment,in THE DEAF MAN AND THE WORLD 33 (R. Jones &K. Stevenson
eds. 1969).
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[Vol. XXXIX
problem of what constitutes the "reasonable accommodation" which
must be made for the handicapped, the lack of organization among the
various groups of handicapped persons, and the conflict inherent in the
federal legislation itself. The article will conclude with recommendations
for statutory changes which should better enable the visually impaired,
and the handicapped generally, to compete for better jobs.
I.
Federal Law and the Visually Impaired
A.
The Standardsfor Statutory Disability
A segment of visually impaired persons may fit statutory definitions
of "blind" or "disabled." Statutory provisions regarding the "blind" or
"disabled" do not pertain to other visually impaired persons. The emphasis in these provisions is not rehabilitation, but financial aid via
government largesse. If an individual meets the statutory definition of
blindness, he or she qualifies for a special exemption on the federal income tax.2 Likewise, the blind applicant may be eligible for benefits
under the Social Security Act.' To receive Social Security benefits,
however, the petitioner must prove that he or she cannot work in any
conceivable job in any location, a difficult standard to meet.4 While the
recent federal rehabilitation legislation had no direct impact on the
Social Security disability statute, two recent disability cases concerning
visual impairments suggest that the legislation may have had the indirect effect of influencing judges to interpret the statute liberally.5
2 I.R.C. § 151(d) (1976). See generally Note, Tax Expenditure Analysis of LR.C. §
151(d), The Additional Exemption for the Blind: Lack of Legislative Vision?, 50 TEMPLE L.Q.
1086 (1977) [hereinafter cited as Lack of Legislative Vision]. Under I.R.C. § 151(d)(3), "an individual is blind only if his central visual acuity does not exceed 20/200 in the better eye
with correcting lenses, or if his visual acuity is greater than 20/200 but is accompanied by a
limitation in the fields of vision such that the widest diameter of the visual field subtends an
angle no greater than 20 degrees." The exemption was enacted to alleviate the additional
expense which the blind incur as a result of their infirmity. See Lack of Legislative Vision,
supra,at 1093-94.
' See 42 U.S.C. § 1382c (1976). To determine eligibility benefits for the blind, the
Social Security Act uses the same "blindness" standard as I.R.C. § 151(d)(3), supra note 2,
but also provides that an individual may be considered blind "if he is blind as defined under
a state plan approved under subchapter X or XVI of this chapter." 42 U.S.C. § 1382c(a)(2)
(1976). See generally Liebman, The Definition of Disability in Social Security and Supplemental Security Income: Drawing the Bounds of Social Welfare Estates, 89 HARV. L.
REV. 833 (1976); tenBroek & Matson, The Disabled and the Law of Welfare, 54 CALIF. L.
REV. 809 (1966).
' 42 U.S.C. § 423(d)(2)(A) (1976). See, e.g., McPherson v. Ribicoff, 209 F. Supp. 341 (D.
Md. 1962). In McPherson, a 59 year-old installation supervisor with 42 years service with
the telephone company was denied disability benefits despite a left heminopsia which left
him with visual and balance problems. Id. at 342. The company considered him disabled, but
the court denied him Social Security benefits because he had failed to establish that he could
not possibly participate in any gainful activity. Id. at 343.
1 See Cornett v. Califano, 590 F.2d 91 (4th Cir. 1978); Wolfe v. Califano, 468 F. Supp.
1018 (W.D. Pa. 1979). The plaintiff in Cornett was a former technical secretary who fell vic-
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EMPLOYMENT DISCRIMINATION
.71
Such liberal interpretation expands the class of individuals who meet
the Social Security statutory standard, thus broadening the scope of the
statute's remedy.
B.
The Basic Structure of The RehabiliationAct of 1973
The Rehabilitation Act of 1973 (the Act) represents the most comprehensive federal attempt to address the needs of handicapped citizens.
The Act and subsequent amendments have provided new services to the
handicapped in general, and in some cases to the blind in particular.' In
addition, several provisions of Title V of the Act deal with the problem
of employment discrimination. 7 These provisions are limited to specific
tim to intercranial pressure which causes nystagmus (an involuntary movement of the eye
from side to side), presbyopia (inability to focus on nearby objects), and severe swelling of
the left eye. 590 F.2d at 92. She originally was turned down for social security disability
benefits because she still could perform such work as dictaphone transcription. IMLat 93.
The Cornett court reversed, stating that the ability to work only limited hours or on an intermittent basis does not constitute the ability to perform "substantial gainful activity." Id
at 94. The plaintiff in Wolfe was blind in one eye from birth and had severe problems with
the other, including glaucoma, anterior cleavage syndrome, keratosis, and adhesions of the
iris to the cornea. 468 F. Supp. at 1021-22. Her visual acuity measured 20/30 +, but she could
see that well only for a very short time and could perform work only by resting her eye at
frequent intervals. Id. at 1020. She applied for child's disability on her parents' Social
Security, was turned down, and filed a complaint to reverse the decision. Id. at 1019.
Through a procedure involving hearings, reconsiderations, and appeals, the government rejected her application five times. Id. The issue in her case was whether the record contained
"substantial evidence" to support the Secretary's finding that the plaintiff had failed to sustain her burden of demonstrating that she was disabled. Id.; see Richardson v. Perales, 402
U.S. 389, 391 (1971) (substantial evidence standard). The magistrate's report stated that the
only time a vocational expert who testified at the hearing indicated that the petitioner was
able to work was when he was asked to assume that petitioner was not suffering from the
conditions that actually afflicted her. 468 F. Supp. at 1022. The magistrate also stated that
the court should consider subjective symptoms and concluded that the petitioner could not
work. Id. at 1022-23. The judge accepted the magistrate's report and ruled in favor of the
petitioner. Id. at 1024.
Title III of the Rehabilitation Act of 1973 (the Act) provided grants for special projects that provide vocational rehabilitation services with some promise of improving services to handicapped persons including older blind individuals. Rehabilitation Act of 1973,
Pub. L. No. 93-112, § 304, 87 Stat. 381 (1973) (codified at 29 U.S.C. § 774(b) (1976)) (repealed
1978 and replaced with provision to fund personnel training needs of public and private
rehabilitation programs, 29 U.S.C. § 774(b) (Supp. H 1978)). Title III also established a National Center for Deaf-Blind Youth and Adults. Id. § 305, 87 Stat. 383 (1973) (current version
at 29 U.S.C. § 777c (Supp. H 1978)). The 1974 amendments included giving priority to the
blind in hiring for vending facilities in federal buildings. Randolph-Sheppard Act Amendments of 1974, Pub. L. No. 93-516, § 202, 88 Stat. 1623 (codified at 20 U.S.C. § 107(b) (1976)).
The 1978 amendments to the Act provided for reader services to the blind. Rehabilitation,
Comprehensive Services, and Developmental Disabilities Amendments of 1978, Pub. L. No.
95-602, § 314, 92 Stat. 2975 (codified at 29 U.S.C. § 777(d) (Supp. m1
1979)).
7 In marked contrast to Title V of the Rehabilitation Act, Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e (1976), prohibits race and religious discrimination in any sector of the economy involving interstate commerce. As the legislative history of Title VII
stated:
The purpose of this title is to eliminate ... discrimination in employment based on
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[Vol. XXXlX
areas of employment. Section 501 calls for affirmative action in federal
employment and requires all departments to submit their plans to the
Civil Service Commission (now the Office of Personnel Management).'
Section 503 requires affirmative action in federal contracts valued at
more than $2,500 and gives aggrieved parties the right to file a complaint with the Department of Labor.' Section 504 prohibits discrimination against the handicapped in federally funded employment. 0
Sections 503 and 504 protect only "qualified handicapped individuals."
Under the Act, a "handicapped individual" was defined as a person who
had a physical or mental disability that "substantially impaired" the individual's employability, and who could "reasonably be expected to
benefit in terms of employability from vocational rehabilitation
services."" Amended in 1974, the Act now broadly defines "handicapped
individual" as a person who "(i) has a physical or mental impairment
which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as hav12
ing such an impairment."
For employers covered by section 503, the regulations define a
"qualified" handicapped individual as a handicapped person "who is
capable of performing a particular job, with reasonable accommodation
to his or her handicap."" Section 504 defines "qualified" similarly in the
14
employment context.
race, color, religion, or national origin.... Section 701(a) sets forth a congressional
declaration that all persons within the jurisdiction of the United States have a
right to the opportunity for employment without discrimination on account of
race, color, religion, or national origin. It is also declared to be the national policy
to protect the rights of such persons to be free from such discrimination.
H.R. REP. No. 914, 88th Cong., 2d Sess. 26,reprintedin [1964] U.S. CODE CONG. & AD. NEWS
2391, 2401. The Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C.
§§ 621-634 (1976), provides further evidence that Congress could enact broad antidiscrimination legislation when it chose to do so. The purpose of the ADEA was "to promote the
employment of older workers based on their ability.... The prohibitions in this bill apply to
employers, employment agencies and labor organization." H.R. REP. No. 805, 90th Cong., 1st
Sess. 1, reprinted in [1967] U.S. CODE CONG. & AD. NEWS 2213, 2214; see 29 U.S.C. § 621(a)(4)
(1976).
8 29 U.S.C. § 791(b) (1976).
9 Id. § 793(b).
,0Id. § 794.
11 Rehabilitation Act of 1973, Pub. L. No. 93-112, § 7(6), 87 Stat. 361 (current version at
29 U.S.C. § 706(7)(B) (Supp. III 1979)); see note 12 infra.
12 29 U.S.C. § 706(7)(B) (Supp. III 1979). The definition of the protected class was thus
expanded to include all handicapped persons who might benefit from rehabilitation services,
not just those who might become employable through such services. See S. REP. No.
93-1297, 93d Cong., 2d Sess. 37-41, reprinted in [1974] U.S. CODE CONG. & AD. NEWS 6373,
6388-91. The report gave examples of admission to schools, nursing homes, and programs
for the severely disabled when the individuals, even with rehabilitative services, still were
not likely to become employable. Id. at 37-38, reprinted in [1974] U.S. CODE CONG. & AD.
NEWS at 6388-89.
3 41 C.F.R. § 60-741.2 (1981).
",45 C.F.R. § 84.3(k) (1981).
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EMPLOYMENT DISCRIMINATION
Section 503 regulations compel an employer to make a "reasonable
accommodation" to the handicap of an employee unless the employer can
demonstrate that the accommodation "would impose an undue hardship
u
on the conduct of the contractor's business.""
Section 504 also requires
that the employer make a "reasonable accommodation" to handicapped
applicants and employees and defines the accommodations that the
employer must make in terms nearly identical to the terms contained in
the section 503 regulations."
Section 503 specifies enforcement by the Department of Labor. 17 The
Department has the right to terminate the contract and deny the offender future federal contracts.18 The Labor Department's Office of
Federal Contract Compliance Programs (OFCCP) coordinates enforcement programs.19 Under section 504, on the other hand, each agency
which supervises federally funded programs is responsible for compliance. The section is not self-enforcing and does not place in a single
agency the authority to promulgate rules for effective enforcement."0
C.
Federal Case Law
The reach of the antidiscrimination provisions of the Act are limited
in that they apply only to federal employment, federal contracts, and
jobs supported by federal money. Since claims under Title VII of the
Civil Rights Act of 19641 are not so limited, people discriminated against
for reasons other than handieaps stand in a better position than victims
of handicap discrimination. In addition, section 504 of the Act generally
does not forbid discrimination against the handicapped by recipients of
federal assistance.' The statute instead requires that the discrimination
have some direct or indirect effect on the handicapped persons in the activity receiving federal financial assistance.' In addition to these
's 41 C.F.R. § 60-741.5(d) (1981).
" 45 C.F.R. § 84.12 (1981).
" 29 U.S.C. § 793(b) (1976).
,s 41 C.F.R. § 60-741.28(e) (1981).
See 41 C.F.R. § 60-741.1 (1981) (purpose of affirmative action regulations is to assure
"
compliance with § 503 of the Act).
" See generally, Note, Enforcing Section 504 Regulations: The Need For a Private
Cause ofAction to Remedy DiscriminationAgainstthe Handicapped,27 CATH. U. L. REV. 345
(1977).
21 42 U.S.C. § 2000e (1976); see note 7 supra.
n See, e.g., Hall v. Board of County Comm'rs,- 509 F. Supp. 841, 849 (D. Md. 1981)
(plaintiff without standing to sue under § 504 when federal funds not specifically designed
to pay plaintiff's salary). But see Poole v. South Plainfield Bd. of Educ., 490 F. Supp. 948,951
(D.N.J. 1981) (court refused to ascertain whether federal money, actually spent on school's
athletic program).
n See Simpson v. Reynolds Metals Co., 629 F.2d 1226, 1232 (7th Cir. 1980) (employee of
company participating in federally funded on-the-job training and veteran's programs not
within reach of § 504 because he was neiiher participant in on-the-job program or veteran).
See also Brown,v. Sibley, 650 F.2d 760, 769-70 (5th Cir. 1981) (organization chartered to provide work for blind beyond reach of § 504 because federal dollars did not support jobs in
question).
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[Vol. XXXIX
general substantive limitations of section 504, courts have interpreted
the section so narrowly that it only reaches new programs."
Courts have further restricted the reach of the antidiscrimination
provisions of the Act by interpreting the Act as not conferring any civil
rights, such as a private right of action. As originally enacted, sections
503 and 504 of the Act failed to provide express remedies by which individuals could enforce its guarantees. Several 1978 amendments,
however, have refueled debate on whether the statutory framework of
the Act implies a private right of action. In 1978, Congress added section
505, which permits courts to award attorneys fees to successful litigants
under Title V of the Act." Since Title V includes section 503, a number of
district courts have reasoned that the amendment evinces congressional
approval of a section 503 private remedy. Several circuit courts of appeals have refused to recognize the private right of action, however, on
the grounds that section 505 is too ambiguous to create a private right of
action under section 503.7
In addition, Congress amended section 504 in 1978 to extend to individuals the "remedies, procedures and rights" of Title VI of the Civil
Rights Act of 1965, a statute that prohibits racial discrimination in
federally funded programs." The Fourth Circuit in Trageser v. Libbie
Rehabilitation Center" recently transformed this amendment into a
severe curtailment of section 504's guarantees. The Fourth Circuit concluded that the 1978 amendments withdrew private remedies to redress
handicapped based employment discrimination except in a few specified
cases." The court relied on a provision of Title VI of the Civil Rights Act
of 1964 that limits the authority of government agencies to terminate
federal financial assistance to programs that discriminate in employment on the basis of race, color, or national origin." Since the 1978
Amendments extended to the handicapped only those remedies available under Title VI, the Trageser court concluded that the Title VI limitation on funding termination precludes private causes of action to enforce
employment rights under section 504.32 The Trageser holding thus
substantially restricts the class of private recipients of federal funds
"4See, e.g., Philadelphia Council of Neighborhood Orgs. v. Coleman, 437 F. Supp. 1341,
1359-60 (E.D. Pa. 1977) (tunnel to link commuter rail lines need not comply with § 504 mass
transit requirements because new tunnel constituted improvement to existing lines), affd
mem., 578 F.2d 1375 (3d Cir. 1978).
' 29 U.S.C. § 794a (Supp. II 1978).
" See Note, Implying a Cause of Action Under Section 503 of the RehabilitationAct
of 1973, 79 MICH. L. REV. 1093, 1094 (1981).
27 1
SI
29 U.S.C. § 794 (Supp. II 1978).
590 F.2d 87 (4th Cir. 1978), cert. denied, 442 U.S. 947 (1979).
Id. at 88-90.
Id. at 88; see 42 U.S.C. § 2000d (1976).
590 F.2d at 88-90.
EMPL 0 YMENT DIS CRIMINA TION
19821
against whom handicapped job applicants can bring actions for employment discrimination.3
In accordance with the "otherwise qualified" standard promulgated
by the Department of Labor,s the Supreme Court has defined narrowly
the protected class of the Act. In Southeastern Community College v.
Davis,' a handicapped applicant to a nursing program in a community
college in North Carolina was denied admittance based on her handicap. 6
Her hearing was seriously impaired, but she could understand conversation directed toward her by reading lips.31 The Supreme Court denied
the plaintiff's discrimination claim, holding that a college could set
reasonable requirements for admission to a clinical program." The Court
stressed the safety hazards, both to the plaintiff and the hospital's patients, inherent in admitting a seriously handicapped person 9 and stated
that sufficient modification of the program to ensure safety might constitute such a large scale change as to deny the plaintiff the full benefits
of the program.' The Court agreed that a handicap alone should not disqualify a person from a job,'1 but that the "otherwise qualified" language
of section 504 required a handicapped individual to meet a program's requirements in spite of his handicap."' In addition, the Court interpreted
affirmative action for the handicapped narrowly. Although section 503
requires affirmative action for the federal government and federal contractors, section 504 does not require educational institutions to modify
their standards to accommodate a handicapped person." Without an affirmative action requirement, a potential employee or trainee must prove
that he or she is qualified despite any handicap. In addition, training institutions are permitted to apply the standards set by employers, thus
obviating the need for those employers to actually reject the applicant.'"
It is possible that the handicapped may someday be barred from professions and skills because training institutions could apply criteria im:
33
See Dystel, The Courts and the Disabled,5 EMPLOYEE REL. L.J. 369, 380 (1980).
1 See text accompanying note 42 infra.
'442 U.S. 397 (1979). See generally Guy, Accommodation for the Handicapped. What
is the Employer's Duty?, 5 EMPLOYEE REL. L.J. 350 (1980) [hereinafter cited as Guy].
U 442 U.S. at 402.
Id. at 401.
Id. at 405-07.
Id at 401-02.
SI&.
41 See id.
at 405 n.6.
" Id.at 406; accord,45 C.F.R. § 84.3(k)(3) (1981) (qualified handicapped person defined
as handicapped person meeting institution's technical and academic standards).'
See text accompanying note 9 supra.
"442 U.S. at 413 & n.12.
In Davis, the college consulted with the director of the State Board of Nursing, and
the Director advised that the plaintiff's handicap would make it unsafe for her to act as a
nurse. Id.
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[Vol. XXXlX
posed by employer groups which presume that handicapped people could
not effectively perform necessary skills.
In addition to not protecting a applicant who is unqualified because
of his handicap, section 504 of the Act does not protect a handicapped job
applicant who is found unqualified for reason other than handicap. In Upshur v. Love," a blind teacher in San Francisco contested the denial of an
administrative position.47 The school district had complied with section
504's requirement that a recipient of federal money "make preemployment inquiry into the applicant's ability to perform job-related
functions."'" The federal court for the Northern District of California
found that Upshur lacked the qualifications to be an effective administrator."9 The school district claimed Upshur was rejected not because of
his blindness, but because of other factors, including the lack of a plan to
deal with his handicap on the job. 5 The court found no due process violation, since the school district gave Upshur the required hearing and had
not imposed a per se limitation on the promotion of handicapped (including
blind) teachers within the system.5 1 The opinion stated that the rational
basis test applied, since physically handicapped persons are not a suspect
class for fourteenth amendment purposes.2 The court also stated that
the defense had shown that the school system would not have promoted
Upshur, even in the absence of the alleged constitutional violation.'
The most effective defense against handicapped petitioners is the
Bona Fide Occupational Qualification (BFOQ). If the employer can
establish that vision at a certain level is a BFOQ, failure to hire or promote a person whose vision falls below that level can meet the test of rationality required by the fourteenth amendment.5' In Coleman v.
Dardin,5 for example, a blind law school graduate who had failed the bar
examination was not offered a job as a legal research assistant, although
the employer offered the position to people with normal vision as a matter of custom.56 The government claimed that ability to read legal
material was a BFOQ for research assistants and that plaintiff could not
" 474 F. Supp. 332 (N.D. Cal. 1979).
,7 Id. at 333.
Id. at 335, 342; see 45 C.F.R. § 84.14 (1977).
474 F. Supp. at 341-42.
Id. at 335.
51 Id.
at 338-39.
Id. at 337; see notes 68-69 infra.
474 F. Supp. 332, 337 n.13; cf. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle,
429 U.S. 274, 287 (1977). In Mt. Healthy, a teacher claimed that he was fired for exercising
his first amendment right to free speech. 429 U.S. at 287. The Mt. Healthy Court remanded
the case, ordering the lower court to determine whether the School Board could show by a
preponderance of the evidence that it would have dismissed the teacher in the absence of
the constitutionally protected conduct. Id.
See text accompanying notes 68-69 infra.
13 Empl. Prac. Dec. 6788 (D. Colo. 1977), affd, 595 F.2d 533 (10th Cir.), cert. denied,
444 U.S. 927 (1979).
" 13 Empl. Prac. Dec. at 6789.
EMPLOYMENT DISCRIMINATION
1982]
perform the job without a reader. 57 The court agreed, ruling that the jobrelated criteria were reasonable.
As the foregoing cases indicate, the Act has not influenced federal
courts to find for handicapped petitioners complaining, of job discrimination. In fact, the only visually impaired plaintiff who has succeeded in obtaining relief on her federal discrimination complaint won on a due process claim unrelated to the Act. In Gzrmankin v. Costanzo,59 a blind
teacher's aide accused the Philadelphia school system of discrimination.
She had successfully taught in private Hebrew schools and had been a
teacher's aide in the public school system, working with handicapped
children.61 She wanted to teach sighted children, but met with the
system's irrebutable presumption that blind teachers could not function
effectively with sighted pupils. 2 She sued the superintendent of the
school system, claiming employment discrimination in violation of her
Fourteenth Amendment due process rights." She also claimed a violation of the Rehabilitation Act, the purpose of which was to "promote and
expand employment opportunities in the public and private sectors for
handicapped individuals and to place such individuals in employment. ' ' u
The Gurmankin court found for the plaintiff, reasoning that the interviewer who considered her for the position knew very little about blind
people and did not try to assess accurately whether she could actually do
the job. 5 The interviewer's action deprived the plaintiff of the right to
compete for the position she wanted-and, therefore, violated her due process rights. The court further noted, however, that physically handicapped people are not a suspect class under the equal protection clause of
the fourteenth amendment. Since the plaintiff was not a member of a
7 Id. A reader may not be paid by the federal government, or receive any federal
benefits. 5 U.S.C. § 3102(b). (Supp. IV 1980). The reader may; however, be a volunteer or
else be paid by a nonprofit organization, state vocational rehabilitation agency, or the
employee himself. Id. Additionally, readers may not receive any federal benefits. Id. The
Coleman court did not discuss the possibility of the petitioner paying a reader out of his
salary. Due to new technology, it may soon be unnecessary to hire readers for the blind. See
text accompanying notes 150-54 infra.
13 Empl. Prac. Dec. at 6789.
411 F. Supp. 982 (E.D. Pa. 1976), affd, 556 F.2d 184 (3d Cir. 1977), vacated on other
grounds, 626 F.2d 1115 (1980), cert. denied, 450 U.S. 923 (1981).
Id. at 984-88.
"
Id. at 984.
Id. at 990.
Id. at 993.
Id.; see 29 U.S.C. § 701(8) (1976) (amended 1978).
411 F. Supp. at 988.
Gurmankin v. Costanzo, 556 F.2d 184, 186-87 (3d Cir. 1977), affg 411 F. Supp. 982
(E.D. Pa. 1976); cf. Cleveland Bd. of Educ. v. LeFleur, 414 U.S. 632 (1974) (striking down irrebuttable presumption that teachers could not perform teaching duties effectively beyond
fourth month of pregnancy).
67 411 F. Supp. at 992 n.8. The Gurmankincourt stated that, "unlike distinctions based
on race or religion, classifications based on blindness can often be justified by the different
abilities of the blind and the sighted." Id.
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[Vol. XXXIX
suspect class," discrimination on the basis of handicap could be legally
defended against under the easier "rational basis" test. 9 The Gurmankin
court elected to decide the case on constitutional grounds rather than
under the Rehabilitation Act, because the violation occurred three years
before passage of the 1973 legislation.7"
D.
Administrative Remedies Under the RehabilitationAct
Slow progress toward rulemaking, lack of a central agency for enforcement of antidiscrimination provisions, and definitional inconsistencies within and between agencies have combined to make it difficult for
handicapped petitioners to find an administrative remedy under the
Rehabilitation Act. Different agencies are responsible for each of the
antidiscrimination provisions within the Act. 1 There were no rules for
enforcement of section 504 until 1977, nearly four years after the
passage of the Act.72 There has not even been complete agreement within
the Department of Health, Education and Welfare (HEW) and its successors over language defining the handicapped. Although there may be
little or no difference in intent between the phrases "qualified handicapped individual" and "otherwise qualified handicapped individual," the
" Id. If the state action involved classifications which were inherently "suspect," such
as those based on race or nationality, the state would have to demonstrate that the
classification was necessary to promote a "compelling" state interest. See Burgdorf &
Burgdorf, A History of Unequal Treatment" The Qualificationsof HandicappedPersons as a
"Suspect Class" Under the Equal Protection Clause, 15 SANTA CLARA LAW. 855, 900-01
(1976) [hereinafter cited as Burgdorf].
" If the class is not suspect, and if the state action did not affect a "fundamental
right" either expressly or impliedly guaranteed by the Constitution, a court should apply
the "rational basis" test and uphold the classification if it was reasonably related to a
legitimate governmental objective. See Burgdorf, supra note 68, at 900-01. But cf. Griggs v.
Duke Power Co., 401 U.S. 424 (1971) (racially discriminatory effect calls for strict judicial
scrutiny).
70 411 F. Supp. at 989.
"' Section 501 places responsibility for federal employment of handicapped individuals
in the Civil Service Commission, now the Office of Personnel Management. 29 U.S.C. § 791
(1976). The Department of Labor enforces § 503. 29 U.S.C. § 793 (1976). Section 504 was enforced by the Department of Health, Education and Welfare (HEW). 29 U.S.C. § 794 (1976).
The Department of Education Organization Act transferred HEW's authority to the
Department of Education for educational programs, § 301, 20 U.S.C. § 3441 (Supp. 11 1979),
and to the Department of Health and Human Services (HHS) for other programs. §§ 509-510,
20 U.S.C. §§ 3508-3509 (Supp. III 1979).
' HEW did not promulgate regulations for the protection of the handicapped until the
Action League for Physically Handicapped Adults sued to compel such rulemaking. Cherry
v. Matthews, 419 F. Supp. 922 (D.D.C. 1976). In ordering rulemaking, the Cherry court held
that it was a purpose of the Act to direct that new rules be written for the protection of the
handicapped. Id. at 924. The court retained jurisdiction over the case to ensure that such
rules were actually established. See 42 Fed. Reg. 22,676 (1977) (codified in 45 C.F.R. § 84
(1981)). The class of people covered by the regulations parallels those covered by Labor
Department rules. See 42 Fed. Reg. 28,678 (1977) (codified in 45 C.F.R. § 84.3(k)(1), (3) (1981)).
1982]
EMPLO YMENT DISCRIMINATION
fact that a single department could use differing terminologies to define
the same population indicates a lack of agreement concerning the class
to be protected 8 Between departments, the differences in definitional
language are even greater."
Although new Labor Departmentrules apply to Section 504 by agreement with HEW and its successor departments,75 this is only part of the
coordination needed to ensure efficient enforcement of the Act. Even
though the substantive reach of the Act extends only to people who
could perform the jobs they seek despite their handicaps, procedural
remedies repudiated in Tragesermay be resurrected by the Department
of Labor. In regulations promulgated in October, 1980, the Department
initiated procedures for aggrieved parties to file discrimination complaints with the Labor Department, at least within its jurisdiction over
federally funded programs. 78 In its report, the Department rejected the
reasoning of Trageser and stated that the limitations on conditions
stressed in Trageser apply only to private actions, not to the government's own enforcement authority.77 The Department also stated that
the regulations fall within the authority left to the government under
the holding in Davis on the theory that situations may arise where a
refusal to undertake affirmative action on behalf of the handicapped
might become unreasonable and discriminatory.78 Under the Labor Department's regulations, aggrieved parties might seek relief through the
Department instead of the courts where federally funded programs are
concerned. Even so, it is unclear whether an administrative agency can
broaden its authority to grant relief through administrative pro,' In 45 C.F.R. § 84, HEW mentioned "qualified handicapped" applicants without the
word "otherwise" to ensure that the applicant could perform the job successfully. The agency
used the example of a blind person who could "otherwise" perform the duties of a busdriver,
but should not be given the opportunity to drive a bus. 42 Fed. Reg. 29,551 (1977). The same
department proposed in 45 C.F.R. § 85: "A recipient shall make reasonable accommodation
to the known physical or mental limitations of an otherwise qualified handicapped applicant
or employee unless the recipient can demonstrate that accommodation would pose an undue
hardship on the operation of the program." See 43 Fed. Reg. 2138 (1977) (emphasis added).
" The Department of Labor's Office of Federal Contract Compliance Programs
(OFCCP) has suggested a broader definition of the handicapped than that used by HEW or
its subagency, the Office for Handicapped Individuals, In its proposal for changes in 41
C.F.R. § 60-741.2, the OFCCP stated: "For purposes of this Part, a handicapped individual is
"substantially limited" if he or she is likely to experience difficulty in securing, retaining or
advancing in employment because of a handicap:' 41 Fed. Reg. 16,149 (1976).
, 45 Fed. Reg. 66,706 (1980).
, Id. at 66,707.
Id at 66,708.
Id. Chief Justice Burger has questioned the expansion of the scope of the rules enforcing § 504: "The trial court must ... decide whether the regulations at issue, which go
beyond the carefully worded nondiscriminationprovision of § 504, exceed the powers of the
Secretary under § 504. The Secretary has no authority to rewrite the statutory scheme by
means of regulation." University of Texas v. Caminesch, 451 U.S. 390, 399 (1981) (Burger,
C.J., concurring) (emphasis in original).
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ceedings, especially after the legislation enabling the agency to act has
already been interpreted by the Supreme Court.7 9
II.
State Law: Access To Jobs For The Visually Impaired
As the foregoing discussion reveals, only one visually impaired plaintiff has been successful in asserting a claim based on federal law. With
imprecise division of. administrative authority and narrow court decisions rendering federal legislation ineffective as a means for relief, state
law is often the only source of protection for the handicapped.
Visually impaired plaintiffs first brought state cases for injury
claims arising under worker's compensation statutes. The worker's compensation statutes of many states provide compensation for workrelated injuries."0 The statutes establish benefits for a specified number
of weeks at a set percentage of regular salary, depending on the type of
accident or injury. 1 Prior to the passage of federal rehabilitation legislation, employers and insurance carriers successfully fought to ensure that
workers who sustained eye injuries received no compensation at all or
the minimum allowable amount.2 More recent cases have resulted in
awards, of compensation for the petitioners.8
11 Cf. General Elec. Co. v. Gilbert, 429 U.S. 195 (1976) (regulation enacted contemporaneously with statute should be given more weight than more recent regulation).
I See, e.g., 1 A. LARSON, THE LAW OF WORKMEN'S COMPENSATION §§ 1.00 & .10 (1980)
(purpose and features of typical act).
I3&L;see, e.g., MISS. CODE ANN. § 71-3-17 (Supp. 1981); VA. CODE § 65.1-54 (1980).
See, e.g., Bacetti v. National Tube Co., 65 Ohio Abs. 80, 113 N.E.2d 925 (Ct. App.
1952). In Bacetti,the court instructed the jury to award compensation only it the jury found
that the injury was the proximate cause of the loss of vision and that at least 25% of vision
was lost due to the accident. Id at 81, 113 N.E.2d at 926. The jury was not only required to
rule on the technical legal question of proximate cause, but also on the technical medical
question of the plaintiff's previous level of vision and what constitutes a 250 loss of vision.
Id. at 82-83, 113 N.E.2d at 926-27.
" See, e.g., Herbst v. Independent School Dist. No. 793, 292 Minn. 466,194 N.W.2d 273
(1972) (per curiam); Shannon v. Turissini, 190 Pa. Super. 522, 154 A.2d 310 (1959); Aerosol
Corp. of the South v. Johnson, 222 Tenn. 339, 435 S.W.2d 832 (1968). In Herbst, the petitioner's uncorrected vision was 20/100 before the accident, but he could read with glasses.
292 Minn. at 466, 194 N.W.2d at 274. After the accident, his vision deteriorated to 201300,
rendering him legally blind. Id. at 466, 194 N.W.2d at 274. The Minnesota Supreme Court affirmed the decision of the Workmen's Compensation Commission and awarded him full compensation for loss of sight. Id at 477, 194 N.W.2d at 274-75. In Shannon; the plaintiff lost the
sight of an eye in an accident. 190 Pa. Super. at 523, 154 A.2d at 310. The defense claimed
that the prior removal of a traumatic cataract from the eye mitigated the later loss of vision. Id. at 525, 154 A.2d at 311. The Pennsylvania Superior Court affirmed a lower court
decision that awarded full compensation for the loss of the already impaired eye. Id. at 527,
154 A.2d at 311-12. In Aerosol Corp., the Tennessee Supreme Court upheld a worker's compensation award based on a 40% loss in vision. 222 Tenn. at 342, 435 S.W.2d at 836. The
court ruled that there was sufficient evidence to base the award on uncorrected, rather than
corrected, vision, although correction could have reduced plaintiff's vision loss to 10%. Id.
at 341, 435 S.W.2d at 834. 836.
1982]
EMPLO YMENT DISCRIMINATION
Recently, states -have passed legislation providing aid to handicapped employees. 4 Most state statutes fall into one of three categories.
Some states afford the handicapped protection against discrimination
with a provision for a BFOQ.8 5 A number of states provide no antidiscrimination rights for the handicapped." Other states protect the handicapped against discrimination only in public employment or private
employment supported-to some extent by state funds, similar to the
federal Rehabilitation Act."' A few states have adopted uhusual provisions relating to the handicapped.8
Recently, state courts have begun hearing claims of job discrimination based on visual impairments. The first such case was decided in
New York on the issue of school sports participation. 8 Shortly there8 See generally Leap, State Regulation and FairEmployment of the Handicapped,5
EMPLOYEE REL. L.J. 382 (1980); Note, Access to Buildings and Equal Employmen.it Opportunity For the Disabled.- Survey of State Statutes, 50 TEMPLE L.Q. 1067 (1977).
'3 See, e.g., ALASKA STAT. § 47.80.010 (Supp. 1979); COLO. REV. STAT. § 24-34-402 (Supp.
1980); CONN. GEN. STAT. ANN. § 46a-60 (West Supp. 1981); D.C. CODE ANN. § 6-1705 (1981);
FLA. STAT. ANN. § 23.167 (West Supp. 1981); GA. CODE ANN. § 66-504 ISupp. 1981); HAWAE
REV. STAT. § 378-2 (Supp. 1979); ILL. ANN. STAT. ch. 68, § 2-105 (Smith-Hurd Supp. 1981); Ky.
REV. STAT. § 207.150 (1977); LA. REV. STAT. ANN. § 46-2254 (West 1981 Supp.); MICH. COMP.
LAWS § 37.1102 (Supp. 1981); Mo. ANN. STAT. § 296.020 (Supp. 1981); N.J. STAT. ANN. §
10:5-4.1 (West Supp. 1981); R.I. GEN. LAWS § 28-5-7 (1979); VT. STAT. ANN. tit. 21, § 495
(Supp. 1981); VA. CODE § 40.1-28.7 (1981); WASH. REV. CODE ANN. § 49.60.030 (Supp. 1981); W.
VA. CODE § 5-11-9 (Supp. 1981); WIs. STAT. ANN. § 111.31,.32(f) (West Supp. 1981).
" States affording the handicapped no protection from employment discrimination include Arizona, Arkansas, Delaware, Maine, Massachusetts, 'Mississippi, Montana, New
Hampshire, North Dakota, Ohio, Oklahoma, Pennsylvania, South Dakota, Texas, and Wyoming.
87 See, e.g., ALA. CODE § 21-7-8 (1975); CAL. GOV'T CODE § 11,135 (West 1980); IDAHO
CODE § 56-707 (1976); IOWA CODE ANN. § 601D.2 (1975); KAN. STAT. ANN. § 39-1105 (1975);
MINN. STAT. ANN. § 43.15, subd. 6 (West Supp. 1980); NEB. REV. STAT. § 20-131 (1977); NEV.
REV. STAT. § 284.012 (Supp. 1981); N.M. STAT. ANN. § 28-7-7 (1978); N.Y. CIV. SERV. LAW §
55-b (McKinney's Supp. 1981); N.C. GEN. STAT. § 168-6 (1976): S.C. CODE'§ 43-33-60 (1976);
TENN. CODE ANN. § 8-50-103 (1980); UTAH CODE ANN. § 26-30-3 (Supp. 1981).
' See IND. CODE ANN. § 22-9-1-13(a) (Barns Supp. 1981): MD. ANN. CODE Art. 100, § 95A
(1979); OR.REV. STAT. § 240.392 (1979). While professing to oppose discrimination, Indiana
does not allow the promotion of handicapped employees unless they qualify in advance for
the job they hope to attain, IND. CODE ANN. § 22-9-1-13(b) (Barns Supp. 1981), nor does it
mandate any accommodation for the handicapped. Id.§ 22-9-1-13(c). While the Maryland
statute prohibits medical questions unrelated to ability to 'perform the job on application
forms, MD. ANN. CODE art. 100, § 95A(a) (1979), such provision is limited in its effectiveness
in helping a handicapped job applicant if the person's handicap is obvious to the interviewer.
Oregon allows the severely handicapped to compete for civil work positions via an appointment, rather than a competitive examination. OR.REV. STAT. § 250.392 (1979).
" See Spitaleri v. Nyquist, 74 Misc. 2d 811, 345 N.Y.S.2d 878 (1973). See generally Hermann, Sports and the Handicapped:Section 504 of the RehabilitationAct of 1973 and Curricular,Intramurral,Club and IntercollegiateAthletic Programsin PostsecondaryEducational Institutions, 5 J. COLL. & U.L. 143 (1979). In Spitaleri, a school district would not
allow a student who was blind in one eye to play high school football because of the risk of
total loss of sight. 74 Misc. 2d at 811, 345 N.Y.S.2d at 879. The New York Supreme Court,
82
WASHINGTON AND LEE LA WREVIEW
[Vol. XXXIX
after, a federal district court decided Neeld v. American Hockey
League." In Neeld, the Nova Scotia Voyagers of the American Hockey
League (AHL) turned down a hockey player because of his partial blindness." The plaintiff alleged a violation of his civil rights and asked for an
injunction.2 The federal court granted the injunction under New York's
Human Rights Law, after finding that the plaintiff had shown the
possibility of irreparable harm and the probability of success on the
merits. 3 The court stated that the AHL had not shown that binocular vision was a BFOQ 4 The court further stated, "A person who is partially
or totally blind has a constitutional right not to be discriminated against
by an employer or prevented from participating in a college sports program because of his or her visual impairment."" While this statement
reached far beyond the issues of the case and must be considered dictum," it represents the first time a court made such a sweeping statement about the rights of the visually impaired.
In Zorick v. Tynes,97 a blind applicant had been offered a position
teaching physical education but the school authorities revoked the offer
Albany County, affirmed the decision, on the grounds that the Commissioner of Education's
decision was based on standard medical criteria and was not arbitrary. Id. at 812, 345 N.Y.S.
2d at 879-80. The New York legislature later enacted N.Y. EDuc. LAW § 4409 (McKinney's
1981), specifically to reverse the holding in Spitaleri.The statute provided that a pupil could
participate fully in sports on presentation of affidavits from two licensed physicians that
participation would be "reasonably safe." Id.
In Kampmeyer v. Harris, 93 Misc. 2d 1032, 403 N.Y.S.2d 638, rev'd, 66 A.D.2d 1014, 411
N.Y.S.2d 744 (1978), a proceeding was brought under the New York statute to enjoin a
school district from prohibiting a visually impaired student from participating in an athletic
program. The court stated that the student could not be kept out of sports participation
unless he was classified as handicapped under the Education for All Handicapped Children
Act of 1975, 20 U.S.C. § 1401 et. seq. (1976), and N.Y. EDUC. LAW § 4404 (McKinney's 1981), 8
N.Y.C.R.R. § 200.5(b) (1980). 93 Misc. 2d at 1034, 403 N.Y.S.2d at 641. These two statutes
give the student and parents notice and a hearing prior to the classification of the student
as handicapped. 20 U.S.C. § 1415 (1976); N.Y. EDUC. LAW § 4404. The court, nonetheless,
refused to grant the requested injunction because of the school's liability for an injury that
plaintiff might suffer as a result of sports participation. 93 Misc. 2d at 1034-35, 403 N.Y.S.2d
at 641. The Appellate Division reversed and granted the injunction. 66 A.D.2d 1014, 411
N.Y.S.2d 744 (1978).
o 439 F. Supp. 459 (W.D.N.Y. 1977).
" Id- at 460-61. Article 13(e) of the AHL's By-Laws provided that a player with only
one eye, or whose eyes have a vision of only 3I60ths or under, was ineligible to play on an
AHL team. Id.
92
Id.
Id. at 461-63; see N.Y. EXEC. LAW § 296(1)(a) (McKinney's Supp. 1981).
439 F. Supp. at 462. The Neeld court noted that the plaintiff, in competing for a position on the team, would demonstrate whether his sight loss reduced his hockey ability so
much that the impairment would qualify as a BFOQ. Id at n.2.
11Id at 462. Presumably, the right noted by the Neeld court arises under the due process clause of the fourteenth amendment.
Professional, not college, sports participation was at issue in Neeld. See text accompanying notes 90-95 supra.
372 So. 2d 133 (Fla. Dist. Ct. App. 1979).
'2
"
1982]
EMPLOYMENT DISCRIMINATION
when they found out the applicant was blind." The Florida appellate
court examined the plaintiffs claims under section 504 of the Act and
took notice of HEW regulations requiring employers to "make reasonable accommodation" unless the employer can show that the accommodation would pose an "undue hardship" on the program's operation.9 The
court found, however, that federal regulations were not controlling."'0
Nonetheless, the Zorick court found for the plaintiff on his state claim.
The Florida legislature, in implementing a state constitutional prohibition of discrimination in employment,' had specifically provided that
schools could not refuse employment to the blind without a showing that
the disability prevented satisfactory work performance. 2 In other
words, Florida statutory law provides for the BFOQ exception but
presumes the applicant can do the job."0 3 Since the school authorities had
failed to show the plaintiffs inability to perform the job, the court
awarded the plaintiff relief."4 Other state courts have reached similar
conclusions, protecting blind teachers' employment rights."5
The North Carolina Supreme Court narrowly defined a visual handicap for antidiscrimination purposes in Burgess v. Joseph Schlitz
Brewing Co.' In Burgess, the plaintiff had glaucoma, but the disease
was under control and his corrected vision was 20/20.17 Schlitz refused to
hire the plaintiff because of his glaucoma, and the plaintiff filed an
employment discrimination suit. Schlitz defended by asserting that the
plaintiff was not a handicapped person, and therefore not a member of
the state statute's protected- class, because the disease was under control."8 The state court of appeals held that the remedial nature of the
state statute required broad construction to effectuate the legislative purpose of aiding the handicappel. 1"9 The state supreme court reversed,
"Id.
at 136.
Id. at 138; see 45 C.F.R. § 84.12(a) (1980).
10
372 So. 2d at 138-40. The Zorick court offered four reasons that federal regulations
were not controlling: (1) § 504 provides no private cause of action; (2) the Florida court could
not monitor compliance with § 504's provisions; (3) the plaintiff was not barred from all jobs
by irrebuttable presumption; and (4) the School Board's action would pass the rational basis
test. Id.
101See FLA. STAT. ANN. CONST. art. I, § 2 (West Supp. 1981) (providing that "no person
shall be deprived of any right because of race, religion or physical handicap").
" 372 So. 2d at 141; see FLA. STAT. § 413.08(3) (Supp. 1981).
104
372 So. 2d at 141-42.
Id
105
See, e.g., Fischer v. Wisconsin Dept. of Indus., Labor and Human Relations, 19
103
Empl. Prac. Dec. 9010 (Wis. Cir. Ct. 1979) (school system ordered to accommodate blind
teacher in performance of classroom duties to conform to state law); Bevan v. New York
State Teachers' Retirement Sys., 44 A.D.2d 163, 165-66, 355 N.Y.S.2d 185, 187-88 (App. Div.
1974) (involuntary retirement of blind teacher without a hearing violated state law).
'
1
1
10
298 N.C. 520, 259 S.E.2d 248 (1979).
Id. at 521, 259 S.E.2d at 250.
Id. at 523, 259 S.E.2d at 251.
39 N.C. App. 481, 250 S.E.2d 687 (1979).
84
WASHINGTON AND LEE LA WREVIEW
[Vol. XXXlX
holding that control of the disease prevented the application of "handicapped" status for the purpose of the legislation. 10° The court did not
take notice of the provision of the federal legislation which states that a
person is handicapped if he is "regarded as having such an impairment.""'
It was clear in Burgess that the defendant viewed the plaintiff as being
under some type of disability, but the court held that he was not entitled
to protection against discrimination on the basis of that disability.
Since Gurmankin, state courts have applied the rational basis test to
determine the existence of a BFOQ.' The Supreme Court of Nebraska
applied the test in McCrea v. Cunningham."' Plaintiff claimed his visual
impairment did not prevent him from performing the duties of a
firefighter, despite the Omaha Fire Department's requirement that an
applicant's vision meet certain standards."' The court stated that the
municipality had a right to set the rules in question and upheld the vision requirement."' The court noted the Nebraska statute's BFOQ provision and found that the evidence indicated that the plaintiff's disability
prevented the performance of the work involved."6 In effect, the McCrea
court ruled that the plaintiff had the burden of demonstrating that the
fire department's vision standard was not rationally based. While finding the vision requirements were job related, the court did not decide
whether the particular standard itself was proper.' 7
Perhaps the classic case of employment discrimination against the
visually impaired, if only for its Pinteresque irony, is Connecticut Institute for the Blind v. Connecticut Commission on Human Rights and
Opportunities.' In Connecticut Institute, the plaintiff was denied a
teaching position at the lower school of the Oak Hill School for the Blind
because she did not have 20/20 vision." 9 Although she had taught successfully in the same institution's upper school, she fell victim to the
school authorities' irrebutable presumption that a person with less than
20/20 vision was incapable of teaching young children with serious, and
possibly multiple, handicaps."' The plaintiff's corrected vision was at the
. 298 N.C. at 528, 259 S.E.2d at 254.
"' See 29 U.S.C. § 706(7)(B)(iii) (Supp. III 1979); note 12 supra.
1
See notes 68-69 supra;cf. Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307,
314-17 (1976) (per curiam) (age not suspect class, so age discrimination subject to rational
basis test).
1' 202 Neb. 638, 277 N.W.2d 52 (1979).
. Id. at 640, 277 N.W.2d at 54. The fire department's regulations required vision of
20/30 uncorrected and 20/20 with glasses. Id
Id.at 648-49, 277 N.W.2d at 58.
"' 202 Neb. at 651, 277 N.W.2d at 59; see NB. REV. STAT. § 20-131 (1977).
7 See 202 Neb. at 650, 277 N.W.2d at 54-57.
'1'
176 Conn. 88, 405 A.2d 618 (1978).
Id- at 90, 405 A.2d at 619. Ironically, the plaintiff in Connecticut Institute was a
sighted person, but visually impaired, trying to teach blind children. Compare Gurmankin v.
Costanzo, 411 F. Supp. 982 (E.D. Pa. 1976), affd, 556 F.2d 184 (3d Cir. 1977) (plaintiff was a
blind teacher trying to teach sighted children).
" 176 Conn. at 90, 405 A.2d at 619.
'
EMPLOYMENT DISCRIMINATION
1982]
'
20/45 or 20/50 level. 21
In the absence of a determination that the 20/20 requirement was an occupational necessity, the Connecticut Supreme
Court found the school's vision requirement to be an unfair employment
practice under state law." The court ordered the teacher hired and
remanded the case for a determination of back pay and benefits."
As shown, the visually impaired have won a number of employment
discrimination cases on the basis of state law. In McCrea, one of only two
cases in which petitioners lost, the court decided the case on the narrow
issue of validity of governmental rules, not on the broader discrimination or civil rights issues." 4 Although the federal Rehabilitation Act was
in effect when these cases were brought, all were decided under state
law. While the federal legislation may have influenced state judges to
apply state antidiscrimination laws liberally, such an hypothesis is not
subject to empirical analysis.
Despite the impressive success of some plaintiffs under state law,
dependence on state law poses two major problems. The primary difficulty is the lack of a uniform set of standards to protect the handicapped from discrimination. Each state has its own substantive and procedural protections for the handicapped.1" Courts differ from state'to
state in their interpretations of laws protecting the handicapped.126 The
second problem with this dependence on state law is the lack of legislative history to aid courts in interpreting existing state antidiscrimination legislation."
III.
Specific Issues Of Concern
A.
"ReasonableAccommodation"
The Supreme Court's narrow interpretation of section 504 in Davis
requires the handicapped, including the visually impaired, to
demonstrate their ability to perform the jobs they seek." Congress and
the courts have not made clear what actions constitute the "reasonable
accommodation" mandated under the Act."' The Department of Health
and Human Services (HHS) has defined reasonable accommodation for
the purpose of enforcing section 504 as follows:
Id. at 91, 405 A.2d at 619.
Id. at 95, 405 A.2d at 621; see CONN. GEN. STAT. ANN. § 46a-60(a) (West Supp. 1981).
176 Conn. at 96, 405 A.2d at 622.
1 See text accompanying notes 113-17 supra.
'2, See text accompanying notes 84-88 supra.
" See generally Annot., 90 A.L.R.3d 393 (1979).
127 See, e.g., Dillon v. Great Atlantic & Pacific Tea Co., 43 Md. App. 161, 164, 403 A.2d
406, 408-09 (Ct. Spec. App. 1979); Providence Journal Co. v. Mason, 116 R.I. 614, 622-25, 359
A.2d 682, 686-87 (1976). In Dillon and Providence Journal,the Maryland and Rhode Island
Supreme Courts interpreted legislation on its face, without reference to any legislative
history.
,,' See text accompanying notes 35-45 supra.
1 See text accompanying notes 15-16 supra.
12
'I
"
86
WASHINGTON AND LEE LA WREVIEW
[Vol. XXXIX
Reasonable accommodation may include (1)making facilities used
by employees readily accessable and usable by handicapped persons, and (2) job restructuring, part-time and modified work schedules, acquisition or modification of equipment or devices, the
provision of readers or interpreters, or other similar actions.13
The Supreme Court stated its present position on the "reasonable
accommodation" issue in a case involving a claim of religious discrimina13 a worker who lacked
tion. In Trans World Airlines, Inc. v. Hardison,
sufficient seniority to bid on a job which did not require working on
Saturdays demanded that the airline (TWA) allow him to have that day
off for -religious observances.131 The Supreme Court rejected the
worker's request, stating that requiring TWA to bear more than a "de
minimis" cost in order to give him Saturdays off would impose undue
hardship on the airline. 33 The Court found that TWA's offer to find a
solution within the existing seniority system constituted sufficient accommodation."M In the absence of clear statutory language or legislative
history to the contrary, the Court refused to construe the statute to require the employer to discriminate against some employees so that other
employees could observe their Sabbath. 35' The Hardison Court thus appeared to recommend a policy that placed the efficient operation of the
organization as a whole above the needs of any individual employee.
Read as a precedent applicable to the Rehabilitation Act, Hardison
seems to indicate that future courts will not require employers to spend
large amounts of money to accommodate visually impaired or other handicapped employees. 13' Read narrowly, however, Hardison can be distinguished from the handicap cases. Two significant factors present in Hardison rarely appear in handicap cases. The First Amendment prohibition
on the establishment of religion1 7 probably caused the Court to tread
carefully in balancing a single worker's religious priorities against those
I
42 Fed. Reg. 22,860 (1977) (codified in 45 C.F.R. § 84.12(b) (1980)).
131
432 U.S. 63 (1977).
Id. at 67. In Hardison,the employee's church prohibited work on the Sabbath, which
ran from sunset Friday to sunset Saturday. Id.
'
Id. at 84 & n.15.
Id. at 83 n.14. In Hardison,a collective bargaining agreement was in effect between
Trans World Airlines (TWA) and the International Association of Machinists at the plant
where Hardison was employed. Id. at 67. TWA made efforts through the company's personnel procedures and the union shop steward to reach an accommodation under the seniority
system that would satisfy Hardison. Id. at 67-68. No agreement was reached. Id. at 68-69.
The Court found TWA's efforts to constitute reasonable accommodation. Id. at 83 n.14. The
Court probably was reluctant to order further accommodation, since any change would
undermine the collective bargaining agreement, a result not justified for the benefit of a
single employee. See id. at 81.
13
35.
1
Id. at 83-85.
13
For an extended discussion of the Hardison standard, see generally Guy, supra note
137 U.S.
CONST. amend. I.
1982]
EMPLOYMENT DISCRIMINATION
of his colleagues. ' - In addition, the enforcement of a seniority agreement
was central in Hardison, but generally is not an issue in handicap
'
cases. 39
Consequently, the broader HHS regulations concerning reasonable accommodation,14 0 not applied in Hardison,may continue to apply in
cases.
handicap discrimination
The "reasonable accommodation" requirement and the Hardison
standard are particularly important with respect to the visually impaired. First, the visually impaired face a unique access problem. Unlike
the wheelchair confined, the visually impaired may move within the
workplace with little more difficulty than a person of ordinary sight. Access to the workplace itself, however, is much more difficult. With cutbacks in public transportation, the location of many jobs away from
public transportation,"' and the prohibitive cost of taxi service, the inability of a visually impaired individual to obtain a driver's license"4
severely restricts access to the workplace.
The access problem of the visually impaired may be analyzed under
the federal rehabilitation legislation. While a visually impaired person
with an access problem probably would be an "otherwise qualified individual" within the meaning of section 504, it is unclear whether an
employer has a duty to accommodate such a person with transportation
to the workplace. The affirmative action provision of section 503 may require federal contractors to accommodate an employee's transportation
needs."' There is no private enforcement mechanism, however, and in
the current economic climate, it seems unlikely that the Department of
Labor will enforce affirmative action. Federally assisted employers
under section 504 must abide by nondiscrimination but are not required
to practice affirmative action. 144 A refusal to hire individuals who cannot
provide their own transportation to the workplace probably would be
1 45
defensible under the rational basis standard.
Cf. Yott v. North American Rockwell Corp., 501 F.2d 398, 404 (9th Cir. 1974)
C38
(religious convictions of single employee against paying union dues held subordinate to
strong governmental interest in maintaining union shops).
" See 432 U.S. at 83 n.14. See also Edwards & Kaplan, Religious Discriminationand
the Role of ArbitrationUnder Title VII, 69 MICH. L. REV. 599 (1971). For a discussion of the
special place held by seniority agreements under Title VII but not under § 504 of the
Rehabilitation Act, see Cook, Nondiscriminationin Employment under the Rehabilitation
Act of 1973, 27 AM. U.L. REv. 31, 61-66 (1977).
,, See text accompanying note 130 supra.
"' See generally Note, The Handicappedand Mass Transportation:The Effectiveness
of Section 504 in Implementing Equal Access, 9 FORDHAM URB. L.J. 895 (1981).
" People are denied the privilege of a driver's license at the 20/40 level of visual acuity.
See, e.g., CONN. AGENCIES REGS. §14-44-1(b)(10) (1975). See also Connecticut Institute for the
Blind v. Connecticut Comm. on Human Rights and Opportunities, 176 Conn. 88, 91, 405 A.2d
618, 619 (1978). '" See 29 U.S.C. § 793(a) (Supp. H 1978).
." See id. § 794.
"I See text accompanying notes 68-69 supra.
88
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[Vol. XXXlX
Application of the Hardison standard is also unlikely to require an
employer to accommodate a visually impaired nondriver."8 Because of
the potential cost involved, providing transportation for a specific handicapped employee probably exceeds the "de minimus" requirement for
accommodation mandated in Hardison.There are, however, two accommodations which an employer might be required to make within the Hardison standard. The employer could be required to make a good faith effort to form a car pool so a visually impaired employee could travel to
work with a co-worker. Such an effort would be directly analogous to
TWA's efforts to accommodate Hardison's religious preferences by
working within the framework of the existing collective bargaining
agreement. 1 7 An employer also might be required to provide visually impaired employees with transportation directly to the workplace. In
itself, such accommodation would be more expensive than the Hardison
standard requires, but the employee benefitting from such service could
reimburse the employer for the out-of-pocket costs for such transportation and still be paying less than he would pay for daily taxi service.
In addition to transportation needs, employer accommodation of the
visually impaired may require the employer to provide readers or to
modify existing equipment or devices. The 1978 amendments provide
grants for reader services to be used as part of accommodation. "8
Nonetheless, the Coleman court refused to order a federal agency to provide a reader for a blind employee.' Whether the expense of a reader
for a visually impaired employee exceeds the Hardison "de minimis"
standard is unclear. With new technology designed to aid the blind,
readers may soon be unnecessary. Devices such as the optacon allow the
blind to "read" by transferring printed words to sensations recognizable
by touch.' A blind person can thus "read" ordinary, printed (but not
handwritten) words, although at a slow rate. 5' Since many blind people
own their own optacons, the employer may not need to bear the expense
of providing an employee with one for use at work.'-' Another device
under development for the blind is a machine that translates printed
material to audible speech produced by a voice synthesizer.'53 Such a
device does not allow a blind person to "read" as quickly as a sighted
person, but the new machines are capable of reproducing words at rates
147
See text accompanying notes 131-39 supra.
See text accompanying note 134 supra.
1
29 U.S.C. § 77(d) (1978).
See text accompanying notes 55-58 supra.
148
See generally Gutknecht, Optacon-A Total for Independence, 16 AMER. EDUC. 8
(Jan./Feb. 1980).
,5 A person with an optacon can "read" about 25 words per minute. Id. at 10.
113 Id. at 12. An optacon costs about $3000. Id.
11 See Cantarow, Raymond Kurzwell Giving "Sight" to the Blind, 54 Sci. QUEST 21
(Feb. 1981).
EMPLOYMENT DISCRIMINATION
1982]
comparable to the rate of words produced by human speech.'" It may
ultimately depend on the type of job, however, whether a blind employee who can read print only at a very slow'rate would be considered
"4otherwise qualified" and subject-to statutory protection.
Because the degree of visual impairments varies greatly and has
such diverse effects, discussion of "reasonable accommodation" in terms
of the visually impaired is difficult. Many visually impaired people are
otherwise fully qualified and only require an opportunity to prove their
merit. Others are totally blind and require the use of special equipment
and other 'accommodation. Still others are fully qualified but cannot get
to work because they are not allowed to drive a car. Because of the
degree and variety of impairments and their effects, the standard for
reasonable accommodation for the visually impaired must be determined
case by case.
B. Increased Insurance Rates
One rationale for employment discrimination in the past has been
employers' fear that higher insurance rates will result from hiring handicapped employees. An employer may not refuse to hire an individual
solely for fear of an increased risk of injury,1 5s and consequent higher insurance rates. In City of Los Angeles Department of Water and Power
v. Manhart,"' the Supreme Court recently indicated that discrimination
on the basis of potentially higher insurance rates is impermissible. 5 7 In
Manhart, city workers contributed to their pension plan by an amount
deducted from their salaries.'58 Women paid more than men for the same
monthly pension coverage, since they generally live longer after retirement." 9 Because the employer based the rate differential solely on
gender, the Supreme Court found it to be discriminatory."'
If forcing women to pay more than men for pension coverage constitutes discrimination, then discrimination against the handicapped on the
basis of insurance premiums may also be illegal. So far, this proposition
has been tested in only one case, City of Appleton v. Labor & Industry
Review Commission."' In Appleton, a Wisconsin city refused to hire an
applicant for its police force because 'the city feared that the applicant's
15
Id
Dairy Equip. Co. v. Wisconsin Dep't of Indus., Labor and Human Relations, 15 Empl.
Prac. Dec. 8052, at 7181 (Wis. Cir. Ct. 1977).
"a 435 U.S. 702 (1978).
SId- at 711.
'
Id. at 705.
Id. In Manhart, female employees paid 14.84% more to the retirement fund'than
comparable male employees. Id.
" Id. at 711. In Manhart, Chief Justice Burger dissented, stating that the' differential
in rates was not based on sex, but on longevity. Id at 725-28.
20 Empl. Prac. Dec. 30,138 (Wis. Cir. Ct. 1979).
"'
90
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[Vol. XXXIX
back problem would increase the risk that the city would have to pay
him disability benefits." 2 The court ruled that employee physical condition sufficient to keep insurance rates low was not a BFOQ, and that
physical condition to perform police work was the correct standard."
By analogy, an employer may not refuse to hire a partially sighted
person on the theory that such person's visual impairment will result in
an increase in the employer's insurance rates, unless a certain degree of
visual acuity is actually necessary for performance of the job. There is a
fine line between vision as a BFOQ and vision sufficient to keep insurance rates down. If a certain level of visual acuity is a BFOQ, an
employer who knowingly hires people who do not meet job requirements
will be subject to very high insurance rates or cancellation. If the visually impaired are as safe as anyone else on the job, an employer's experience rating will not justify an increase in insurance rates.'"
To be effective, nondiscrimination policies must be accompanied by
either statutory or administrative change in insurance laws or regulations. Manhart required redistribution of pension costs within the city
employment system, but overall costs were not affected. As long as
employers do not have to pay higher insurance premiums to hire the
handicapped, they will not have any rational basis for refusing to hire.
Experience ratings based on an employer's accident records are used to
calculate insurance rates. 62 If hiring the handicapped does not increase
the accident rate, insurance premiums will not increase. If, instead,
handicapped workers create a safety hazard (as the Court feared in
Davis),' insurance coverage will become more expensive for the
employer. Accommodating the handicapped by paying higher insurance
rates goes beyond the accommodation required in Hardison and perhaps
also beyond that required by HHS regulations.1 17 A statute or regulation
prohibiting the use of handicap data instead of accident statistics in the
calculation of experience ratings would guarantee that insurance rates
will not become a weapon against the handicapped in employment, unless hiring the handicapped actually creates a safety hazard.
C.
OrganizationalDifficulties
Although the threat of increased insurance rates no longer
legitimizes the refusal to hire and promote handicapped employees, find162
Id. at 11743.
"'
Id
at 11745.
Because an employer's insurance premiums are based on industry hazards and actual accident experience, and because disabled employees generally have equal or better
safety records overall than the industry average, an employer who hires the handicapped
will not necessarily experience an increase in insurance rates. See Note, PotluckProtection
for HandicappedDiscriminates: The Need to Amend Title VII to ProhibitDiscrimination
on the Basis of Disability,8 Loy. CHI. L.J. 814, 820-21 (1977).
1
See H. SOMERS & A. SOMERS, WORKMEN'S COMPENSATION 106-10 (1954).
16
167
See text accompanying note 39 supra.
See text accompanying notes 130-35 supra.
1982]
EMPL 0 YMENT DIS CRIMINA TION
ing work is still more difficult for the handicapped, including the visually
impaired, than it is for others. To a great extent, the handicapped have
not made the strides that other groups have'made in fighting discrimination because they are not well organized. Blacks, other minorities, and
women have fought to gain access to better jobs, but each group's
members share a common race, ethnicity, or gender. Organizing,
therefore, is much easier for them than for the handicapped. Even senior
citizens, who belong to all groups, share a common age. The handicapped
are not only less mobile than others because of their impairments, 68 but
their problems are so diverse that it is difficult for them to agree on
measures that will help them as a class. The visually impaired, the hardof-hearing, paraplegics, people with celebral palsy, people missing limbs,
and all the other handicapped individuals usually do not understand fully
each other's problems.6 9 They cannot agree on proposed changes
because the problems of different groups sometimes call for opposing
solutions. A steep curb represents an almost impregnable barrier to a
person in a wheelchair, but it also serves as a warning to the blind using
canes. It is unlikely that the handicapped will reach a consensus and
organize for effective political action in the near future. In the absence of
such organization, however, the visually impaired probably will not
achieve any more success than other handicapped groups in their fight
against discrimination.
D.
Emphasis Problems Within the RehabilitationAct
The structural analysis above indicates that the Rehabilitation Act
of 1973 and its subsequent amendments have endorsed the concept of
"mainstreaming" and stated that handicapped people are entitled to
some protection against discrimination. The theory behind mainstreaming is that not all handicapped people are totally disabled and that a handicap should not prevent a person from working. While the Act may
have provided a theoretical justification for allowing the handicapped to
enter the occupational mainstream, the Act generally has not been effective in protecting the handicapped against employment discrimination.
In large part, this lapse in protection results from the orientation of the
Act itself. The Act's principal purposes are providing services for the
rehabilitation of the most severely handicapped and coordinating federal
and state efforts aimed at rehabilitation. 110 Nondiscrimination provisions
are limited to three sections of Title V of the Act. The objectives of
rehabilitation and protection against discrimination serve two different
populations. The former serves the severely handicapped, who would
1" See text accompanying notes 141-42 supra.The simple act of voting ranges from difficult to impossible for many handicapped voters. See Special Report, The Voice of the People: Selectively Heard at the Polls, AbIcus, March 1976, at 12.
9 See Achtenberg, Law and the PhysicallyDisabled,8 Sw. U.L. REV. 847, 886 (1976).
1
See S. REP. No. 93-318, 93d Cong., 1st Sess. 52, reprintedin [1973] U.S. CODE CONG.
& AD. NEWS 2076, 2125.
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[Vol. XXXlX
probably not be able to enter the workforce unless given rehabilitative
services. The latter objective serves a much broader class of handicapped persons: those persons who can perform a job, although some accommodation may be necessary. Employers generally require such persons
to show that they can perform the job they seek, and that they are not in
need of rehabilitation services. The Act only protects these persons
employed in federally funded programs from discrimination.
. The Rehabilitation Act mandates that the most severely handicapped people receive the highest priority in the disbursement of funds.
Section 101(a)(5) of the Act, for example, requires each state to
demonstrate that its methods of selecting individuals for rehabilitation
services gives special priority to individuals with the most severe handicaps. 171 Emphasizing rehabilitation of the severely handicapped is inconsistent with the expressed purpose of mainstreaming, as articulated in
section 2(8) of the Act, to "promote and expand employment opportunities in the public-and private sectors for handicapped individuals and
to place such individuals in employment." '
Despite moral concern for the plight for the severely handicapped,
bringing such individuals into the workforce is extremely expensive.,
Placing severely handicapped persons in the workforce may, in fact, be
impossible because their skills cannot be brought up to employable
levels. Since the emphasis of the legislation, however, places most of the
money into channels for the rehabilitation of the most serious cases,
many slightly impaired people who otherwise easily could be brought into the mainstream lose their chance to become independent. Unfortunately, limited funding makes it impossible to achieve both the
rehabilitation of the severely handicapped and the mainstreaming of the
slightly handicapped when a fixed amount of funding is available. It appears to this writer that serving a large number of clients who can be
easily rehabilitated is a more effective use of available funds, since such
expenditures will maximize the number of people who become productive wage-earners and taxpayers.
Recent cuts in federal spending do not diminish the importance of
the conflict in emphasis of the Rehabilitation Act. To the contrary, if the
size of the federal pie is reduced, the issue of how it will be divided takes
on even greater importance. With fewer dollars available for the
rehabilitation of the handicapped, it is possible that those few dollars
must be spent on the people who can be'rehabilitated easily and inexpen17 29 U.S.C. § 721(a)(5)(A-(B) (Supp. II 1978); see S. REP.No. 93-318, 93d Cong., 1st Sess.
52, reprinted in [1973] U.S. CODE CONG. & AD. NEWS 2076, 2125.
29 U.S.C. § 701(8) (1976), amended by 29 U.S.C. § 701 (Supp. H 1978).
1 RehabilitationAct Amendments of 1974: Hearings Before the Subcomm. on the
Handicappedof the Senate Comm. on Labor and Public Welfare, 93d Cong., 2d Sess. 62-63
(1974) [hereinafter cited as 1974 Amendments Hearings](testimony of Andrew S. Adams). It
costs 2-1/2 to 3 times more to rehabilitate a severely handicapped person than one whose
disability is less severe. Id. at 62.
1982]
EMPLOYMENT DISCRIMINATION
sively, since there may not be sufficient funds to rehabilitate the most
severely handicapped. With such a shortage of money, the decision on
how to spend every dollar and the cost-effectiveness of trying to
rehabilitate every case takes on paramount importance.
Applying these issues to the visually impaired, it becomes apparent
that many could easily be brought into the mainstream and be given the
chance to become independent Rehabilitation statistics gathered by
HEW support the efficiency of funding programs for the visually impaired. These statistics show that rehabilitation programs designed to
help the visually impaired are highly cost-effective. The mean weekly earnings of participants at the time of referral to the programs in question
were $19.70; at completion, $73.10.17 For this increase of $54.00 perweek,
the average time spent per recipient in the vocational rehabilitation process was 23.4 months, at a cost of $1,363.60.1'5 The cost of rehabilitation,
therefore, was recouped in about six months.""
Some of the visually'impaired could be brought into the workforce
by simply providing them with a new pair of glasses.'" While not all
visual impairments can be cured so easily and cheaply, a comparatively
small amount of money would allow a large number of slightly impaired
to work. If entry of the visually impaired into the mainstream through
employment is an actual goal of the Act, the policy of the Act that mandates priority for those whose rehabilitation is most costly works to
preclude fulfillment of the Act's other stated purpose.
The inconsistency between the mainstreaming goal of the Act and
the Act's emphasis on first rehabilitating the most seriously handicapped has also created confusion over just who the "severely handicapped"
really are. The Subcommittee on the Handicapped of the Senate Committee on Labor and Public Welfare defined the severely handicapped as
follows:
[They] generally require multiple services over an extended
period of time. Intensive and extensive services are usually required. Such severe disability seriously limits functional capacities ... to the extent that the person is unable, to a substantial
degree, to cope with the physical or mental demands of employment. 78
"' Department of Health, Education and Welfare, ANNUAL REPORT OF FEDERAL AcTIVITIES RELATED TO THE REHABILITATION ACT OF 1973 24 (1978).
178 Id
17 This figure is obtained by dividing the average cost, $1363.60, by the average dif-
ferential in weekly earnings due to the program, $54.00. This calculation results in a recoupment time of 25 weeks and 2 days, slightly less than 6 months. Taking the cost of capital expenses and interest into account will lengthen the time slightly.
I" Programs designed to provide glasses to the visually impaired must include all
needy eye patients, and not just those suffering from glaucoma or recovering from cataract
surgery. See White v. Beal, 555 F.2d 1146 (3d Cir. 1977); accord, Simpson v. Wilson, 480 F.
Supp. 97, 101-03 (D. Vt. 1979).
WASHINGTON AND LEE LA WREVIEW
94
[Vol. XXXIX
Hearings of the House Select Subcommittee on Education and Labor
stressed elimination of many of the handicapped from the "severely
disabled" category: "While these handicaps represent problems for the
client, there is some real question as to whether they are seriously
'
disabling or whether public funds should be used to rehabilitate them."179
The Subcommittee expressed concern that "persons with minor physical
problems which might not be truly disabling were receiving services.' ' 0"
In addition, the Subcommittee deplored the emphasis on nonseverely
handicapped cases that can be rehabilitated easily and cheaply to build
up a high success rate."'
The definition of severe visual impairment is currently too restrictive. It should be broadened to include those who are blind in both eyes,
those with no vision in one eye and a defective second eye, and those
who are denied a driver's license for visual reasons.'82 Such a definition
makes sense. The lack of a driver's license can be as much a barrier to access to the workplace as the stairway is to the "otherwise qualified" person confined to a wheelchair. In this age of the automobile, the lack of a
driver's license can severely limit life activity.' Of all the handicapped
population in the United States, 2.7% are listed as blind, 2.4% as having
one blind eye and the other eye defective (also severely disabling), and
5.50/o whose visual impairments are not considered severely disabling.'
IV.
Statutory Recommendations
Effective aid to the handicapped must satisfy two conflicting goals.
The severely handicapped who can never be self-sufficient need some
type of support.'85 An aid program for the less seriously handicapped,
however, should concentrate on rehabilitation to bring handicapped individuals back into the social and economic mainstream. 186
The Rehabilitation Act fails to meet the requirements for effective
aid to the handicapped, specifically the visually impaired. Although the
1 1974 Amendments Hearings,supra note 173, at 494 (special study by Louis Y. Nau).
I Vocational Rehabilitation Services: Oversight Hearings before the Select Subcomm. on Education of House Comm. on Education and Labor, 93d Cong., 1st Sess. 73
(1973)[hereinafter cited as VocationalRehabilitationServices Hearings].
I Id. at 78.
181Id.
1 1974 Amendments Hearings,supra note 173, at 114 (HEW statement).
181See text accompanying notes 141-42 supra. If a person cannot pass a vision test and
is denied a driver's license for that reason, a court is highly unlikely to hold such denial to
be arbitrary and capricious. In Department of Pub. Safety v. Robertson, 203 S.W.2d 950
(Tex. Civ. App. 1947), the court upheld the revocation of plaintiffs license, id. at 953, even
though he had driven for 21 years without an accident. Id. at 951-52. The Robertson court
found that plaintiff could drive safely and considered the hardship under which he would be
placed, but allowed the administrative determination to stand. Id. at 953.
18 VocationalRehabilitation Services Hearings,supra note 179, at 74.
'
See text accompanying notes 2-5 supra.
18 See text accompanying notes 170-72 supra.
1982]
EMPLO YMENT DISCRIMINATION
Act appears to have inspired some judges to rule in favor of visually impaired petitioners alleging discrimination, and to have made the general
public more conscious of the special problems facing the handicapped,
most direct benefits derive from state law. State law, however, fails to
provide uniform protection to the handicapped. ' A strong federal law
would guaranteb the rights of the handicapped even in states currently
affording inadequate protection.
Designing effective legislation requires an understanding of the
statute's beneficiaries. The class of "legally blind" people currently aided by the Act excludes a significant portion of the visually impaired. 8
Employers sometimes discriminate against job applicants on the basis of
a slight ,visual impairment. People are denied the mobility of a driver's
license at the 20/40 or 20/50 level. It is at that level of vision that
employers begin to assume that people could not perform effectively on
'
Legislation should apply to any person subject to discriminathe job. 89
tion because of impaired vision, not just the legally blind. If necessary to
determine or limit eligibility for disability benefits under existing programs, the legislation could distinguish between legally blind persons
and those visually impaired persons not now classified as blind.
To protect all visually impaired individuals from discrimination, Congress should amend the Rehabilitation Act to provide broader coverage
of an increased class. Title VII of the Civil Rights Act of 1964190 should
serve as the model for.the statute herein proposed. Power to enact such
legislation arises under the commerce clause of the Constitution 9 ' and
would improve the position of the handicapped in four major ways. First,
it would extend the Rehabilitation Act's scope beyond federally funded
contracts and employment to reach most large, employers in the private
'
This would alleviate the problem of victims of discrimination
sector. 92
who cannot assert a federal right outside the narrow reach of section
504.111 Although the courts would still have to hear individual allegations
of discrimination on a case by case basis, the proposed statute would
eliminate the Rehabilitation Act's arbitrary distinction between protected employees in federally funded jobs and their unprotected counterparts elsewhere.
Second, a federal statute would guarantee at least a minimum standard of protection to victims of discrimination. Some states currently provide no antidiscrimination rights for the handicapped.9 Passage of the
, See text accompanying notes 125-27 supra.
" See text accompanying note 184 supra.
" See text accompanying notes 118-23 supra.
19 See note 7 supra.
" See, e.g., 29 U.S.C.,§ 621(a)(4), 42 U.S.C. §2000e(h) (1976) (placing authority for the
ADEA and Title VII under the commerce clause).
11 Title VII reaches all employers who employ 15 or more persons on a regular basis.
See 42 U.S.C. §2000e(b) (1976).
193 See text accompanying notes 22-24 supra.
" See note 86 supra.
96
WASHINGTON AND LEE LA WREVIEW
[Vol. XXXIX
statute herein proposed would have the same nationwide impact on
rights of the handicapped that Title VII of the Civil Rights Act of 1964
and the Age Discriminatio in Employment Act of 1967 (ADEA) had on
their protected classes. Even as late as 1961, only thirty two states prohibited discrimination on account of race or color. 95 Before the passage
of the ADEA, only twenty four states prohibited such discrimination.198
The handicapped are in a similar position today and would benefit both
substantively and procedurally from strong antidiscrimination legislation.
The third purpose of the Act would be to provide an administrative
framework for processing complaints. Currently, section 503 provides no
private right of action.19 Whether section 504 provides for private enforcement is open to debate.198 Aggrieved individuals need both an administrative structure and a private right of action to obtain the full
benefits of the statute. A private right of action is more effective than an
administrative remedy if reduced budgets have restricted the capacity
of enforcement agencies or if those agencies lack the volition to prosecute a case fully. Legislation patterned on Title VII would offer a
broad private right, because the courts read narrowly restrictions on
private suits under Title VII. 99 All possible remedies should remain
available to aggrieved persons in both the public and private sectors.
The successful enforcement of any new legislation depends on wise
delegation of enforcement powers to the proper administrative agency.
Enforcement authority must be centralized in a single agency, which can
use its expertise in handling employment discrimination matters. The
present structure of enforcement through OFCCP and HHS may be sufficient for federal programs, as presently covered under sections 503 and
504.200 The Equal Employment Opportunity Commission (EEOC) should
be enlisted, however, to enforce the sections of the proposed Act which
apply to the private sector. The EEOC has long experience in dealing
with the employment discrimination situation.2"' Like the Labor Department, it can resolve discrimination problems through conciliation. 2' ConS. REP. No. 872, 88th Cong., 2d Sess. 11, reprintedin [1964] U.S. CODE
CONG.
& AD.
NEWS 2355, 2368.
1
H.R. REP. No. 805, 90th Cong., 1st Sess. 2, reprinted in [1967] U.S. CODE CONG. & AD.
NEWS 2213, 2215.
10 See text accompanying notes 25-27 supra.
...
See text accompanying notes 28-33 supra.
' See, e.g., Senter v. General Motors Corp., 532 F.2d 511 (6th Cir. 1976), cert. denied,
429 U.S. 870 (1977); Hackett v. McGuire Bros., Inc., 445 F.2d 442 (3d Cir. 1971).
"o
See note 71 supra.
The EEOC was the original agency founded to deal with problems of employment
discrimination. Civil Rights Act of 1964, § 705, codified at 42 U.S.C. §2000e(4) (1976).
12 For an example of effective conciliation, see Delury, Equal Job Opportunityfor the
HandicappedMeans Positive Thinking and Positive Action, 26 LABOR L.J. 679, 684 (1975).
1
1982]
EMPLOYMENT DISCRIMINATION
ciliation can be effective in convincing an employer that an applicant,
although handicapped, is "otherwise qualified."
The conciliation process lends itself especially well to helping the
visually impaired. While the standards for what consitutes "reasonable
accommodation" have not fully been set, the accommodations required
by the visually impaired are relatively inexpensive and simple to
effect.0 3 A conciliator, with the authority of the EEOC behind him, could
be very effective in convincing an employer that it is a reasonable accommodation to form a car pool for a visually impaired person. Agency
experts are also in a position to understand and explain the new
technology available for the visually impaired as part of the employer's
duty to accommodate.
Although the federal protection for the handicapped in the employment situation would be increased greatly under the proposed legislation, the federal government should not totally preempt the field. States
should have the opportunity to offer to the handicapped greater protection than the proposed federal statute. For instance, states could mandate affirmative action programs for the handicapped in private employment or make protection from discrimination a fundamental state constitutional right."' States must also regulate the employment practices
of their own state and local government sectors and employers so small
that they do not meet the size requirements for application of the proposed federal statute.
The supremacy clause of the Constitution would prevent states from
setting rules that defeat the purpose ofthe federal protection.2 5 Congress also could incorporate similar language directly into the statute to
resolve doubt. Effective legislation requires a firm federal hand, but the
statute should not prevent states wishing to extend a greater measure of
protection to their handicapped residents from doing so.
The handicapped enjoy little protection from employment discrimination under the present system. The visually impaired are often fully
qualified to work and need little accommodation in the workplace. They
are among the most likely to suffer from discriminatory practices, yet
Congress easily could eliminate such practices with the proper administrative enforcement agency and a statute evincing a strong legislative
desire to protect the handicapped from employment discrimination.
V.
Conclusion
The Rehabilitation Act, at least in theory, changed the legislative
mandate from basic maintenance of the handicapped to mainstreaming.
2
See text accompanying notes 146-54 supra.
I See, e.g., note 101 supra
25 U.S. CONST. art. VI, cl. 2; see Schoenstein v. Division of Vocational Rehabilitation, 519
F. Supp. 773, 7-79 (D.N.J. 1981) (state regulations in conflict with 504).
98
WASHINGTONAND LEE LA WREVIEW
[Vol. XXXIX
Despite the statements of the Act, however, its emphasis is directed
toward those presently unable to work, rather than potential victims of
employment discrimination. State law presently provides the best protection for the visually impaired, at least in states with strong antidiscrimination statutes. More effective federal legislation is needed to ensure that rational standards determine job qualifications. Effective enforcement programs for antidiscrimination laws are also needed to make
the Rehabilitation Act truly effective in enabling the visually impaired
to find work.
Technology is changing rapidly. New devices which help the blind to
read are enabling the severely visually impaired to work in many new
areas. Employers can accommodate such people more easily now than
ever. The less severely impaired can be accommodated through a car
pool, or simply by an offer of a chance to prove themselves. An administrative structure which uses persuasion and conciliation can most
effectively convince employers to hire and accommodate the visually impaired.
The diffusion of the new technology is the key to fighting discrimination. If new machines which aid the visually impaired become sufficiently widespread and inexpensive, it will become a relatively easy matter to
convince employers that accommodation is cost-effective. While a
statutory and regulatory structure is necessary, voluntary compliance
and accommodation will help the visually impaired much more than administrative hearings and court suits. This holds true for all the visually
impaired, from those whose 'deficiencies are merely a figment of an
employer's imagination, to those who carry white canes.
Washington and Lee Law Review
Member of the National Conference of Law Reviews
Number 1
Winter 1982
Volume XXXIX
Editor-in-Chief
KENNETH B. TILLOU
Lead Articles Editors
ROBERT M. COUCH
DANA S. CONNELL
Managing Editor
Research Editor
LIZANNE THOMAS
DOUGLAS J. CHUMBLEY
Executive Editors
JEFFREY C. PALKOVITZ
GLENN S. THOMAS
SAMUEL N. ALLEN, III
KIRKLAND M. KELLEY
Note & Comment Editors
BROOKS D. KUBIK
LARRY A. BARDEN
JOHN KENT PEARSON
EDWARD J. BEDFORD
JAMES REESE SHOEMAKER
I. SCOTT BIELER
PATRICIA ELIZABETH SINSKEY
PAUL V. GERLACH
JULIA G. THIGPEN
RICHARD NIKONOVICH-KAHN
CAROLINE WANNA MAKER
Staff
D.
STAN BARNHILL
JOHN M. BLOXOM, IV
CARY R. BOND
PATRICIA A. CALORE
DIANE P. CAREY
WILLIAM R. CLEMENT, JR.
GAINES H. CLEVELAND
DEBORAH H. COMBS
DREW C. DEMARAY
THOMAS J. EGAN, JR.
JOHN P. FISHWICK, JR.
MILLARD L. FRETLAND
LEIGH ANN GALBRAITH
THOMAS G. GRUENERT
JULIA D. HARLIN
PAMELA A. HASENSTEIN
Faculty Advisor
ROGER D. GROOT
WILLIAM L. HIGGS
WILLIAM T. JOHNSON
WILLIAM D. JOHNSTON
MATTHEW L. KIMBALL
DAVID M. KOOGLER
MICHAEL L. KRANCER
RICHARD E. LEAR
JAMES R. MACAYEAL
ALAN B. MUNRO
H. DAVID NATKIN
CATHERINE O'CONNOR
JOHN D. PADGETT
DAVID P. PHIPPEN
MELVIN T. RATTRAY
PAMELA L. RYAN
GORDON. W. STEWART
FACULTY-SCHOOL OF LAW
ROBERT
E.R.
HUNTLEY,
A.B., LL.B., LL.M.
President of the University and Professor of Law
ROY L. STEINHEIMER, JR., A.B., J.D.
Dean and Professor of Law
CHARLES VAILL LAUGHLIN,
A.B., LL.B., LL.M., S.J.D.
ProfessorEmeritus
EDWARD
0. HENNEMAN, B.A., J.D.
Assistant Dean and Assistant Professor of Law
ROGER
D.
GROOT,
B.A., J.D.
Professor of Law
FREDERIC
L.
KIRGIS, JR.,
B.A., LL.B.
Professor of Law and Directorof the FrancesLewis Law Center
LEWIS H. LARuE, A.B., LL.B.
Professor of Law
ANDREW W. MCTHENIA, JR., A.B., M.A., LL.B.
Professor of Law
J. TIMOTHY PHILIPPS, B.S., J.D., LL.M.
Professor of Law
WILFRED J. RITZ, A.B., LL.B., LL.M., S.J.D.
Professor of Law
THOMAS L. SHAFFER, B.A., J.D.
Professor of Law
JAMES W.H. STEWART, B.S., LL.B., LL.M.
Professor of Law
JOSEPH E. ULRICH, A.B., LL.B.
Professor of Law
RICHARD B. TYLER, B.S., M.S.E., J.D.
Visiting Professor of Law
DENIS J. BRION, B.S., J.D.
Associate Professor of Law
MARK H. GRUNEWALD, B.A., J.D.
Associate Professor of Law
JAMES M. PHEMISTER, B.S., J.D.
Associate Professor of Law
SAMUEL W. CALHOUN, B.A., J.D.
Assistant Professor of Law
WILLIAM S. GEIMER, B.S., J.D.
Assistant Professor of Law
STEVEN
H.
HOBBS,
B.A., J.D.
Assistant Professor of Law
CATHERINE M.A. MCCAULIFF, A.B., M.A., PH.D., J.D.
Assistant Professor of Law
SAMUEL E. STUMPF, JR., B.A., J.D.
Assistant Professor of Law
SARAH K. WIANT, B.A., M.L.S., J.D.
Law Librarianand Assistant Professor of Law
RUDOLPH BUMGARDNER,
III, A.B., LL.B.
Adjunct Professor of Law
ROBERT M. CAMPBELL, A.B., LL.B.
Adjunct Professor of Law
WILLIAM W. SWEENEY, A.B., LL.B.
Adjunct Professor of Law
JAMES C. TURK, B.A., LL.B.
Adjunct Professor of Law
ROBERT C. WOOD, III, B.A., LL.B.
Adjunct Professor of Law
HENRY L. WOODWARD, B.A., LL.B.
Adjunct Professor of Law
ROSS D. YOUNG, JR., LL.B.
Adjunct Professor of Law
CURTIS R. REITZ, A.B., LL.B.
FrancesLewis Scholar in Residence